Dish Network LLC v. Ramkissoon, 2009 CanLII 71008 (ON S.C.) Print: PDF Format Date: 2009-12-15 Docket: 09-8091-00CL URL: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii71008/2009canlii71008.html Noteup: Search for decisions citing this decision
Reflex Record (related decisions, legislation cited and decisions cited) Related decisionsSuperior Court of JusticeDish Network LLC v. Ramkissoon, 2010 ONSC 761 (CanLII) - 2010-02-02 Legislation cited (available on CanLII)Radiocommunication Act, R.S.C., 1985, c. R-2 Decisions citedOntario Realty Corp. v. P. Gabriele & Sons Ltd., 2000 CanLII 22697 (ON S.C.) -- 50 O.R. (3d) 539 • 78 C.R.R. (2d) 189 COURT FILE NO.: 09-8091-00CL
DATE: 20091215
SUPERIOR COURT OF JUSTICE -- ONTARIO (COMMERCIAL LIST)
RE: DISH NETWORK LLC, ECHOSTAR TECHNOLOGIES LLC AND NAGRASTAR LLC (Plaintiffs) v. RAVINDRANAUTH RAMKISSOON a.k.a RAVIN RAMKISSOON, RAVINDRANAUGH RAMKISSOON a.k.a. DIGITAL, RAVINDRANAUTH RAMKISSOON a.k.a. THEDIGITALSTORE, RAVINDRANAUTH RAMKISSOON c.o.b. as www.thedigitalstore.com, RAVINDRANAUTH RAMKISSOON c.o.b. as www.nfusionteam.com, RAVINDRANAUTH RAMKISSOON C.O.B. as www.canadasat.com, RAVINDRANAUTH RAMKISSOON c.o.b. as www.dummychat.com, RAVINDRANAUTH RAMKISSOON c.o.b. as www.infusioncanada.com, RAVINDRANAUTH RAMKISSOON c.o.b. as www.infusioncanada.ca, RAVINDRANAUGH RAMKISSOON c.o.b. as www.nfusiononline.com, RAVINDRANAUGH RAMKISSOON c.o.b. as www.nfusionrepair.com, RAVINDRANAUTH RAMKISSOON c.o.b. as www.nfusionwarrantycenter.com, RAVINDRANAUGH RAMKISSOON c.o.b. as www.nuvenio.ca, RAVINDRANAUGH RAMKISSOON c.o.b. as www.infusiondepo.com, RAVINDRANAUGH RAMKISSOON c.o.b. as DIGITAL R US, ANTHONY RAMKISSOON, ROSELINE RAMKISSOON, DIGITAL STORE INC., E-CANADA SOLUTIONS INC., JOHN DOE, JANE DOE and other persons unknown who have conspired with the name Defendants (Defendants)
BEFORE: CUMMING J.
COUNSEL: Elissa Goodman and Ira Nishisato, for the Plaintiffs
No one appearing for the Defendants, the motion being brought ex parte
HEARD: DECEMBER 14, 2009
E N D O R S E M E N T
The Motion
[1] The Plaintiffs Dish Network LLC ("Dish") and Echostar Technologies LLC ("Echostar") (collectively the "Plaintiffs") in this action bring an extraordinary ex parte motion for Anton Piller relief against the defendant Ravindranauth Ramkissoon ("Ravin"). The requested relief is for a second Anton Piller order on the basis that a previous, first Anton Piller Order was frustrated by the actions of Ravin.
[2] Ravin and the other defendants have defended the action and are represented by counsel. The Court is advised that this motion raises a matter of first instance inasmuch as there is no known precedent for seeking a second Anton Piller order against the same individual in the same action.
Background
[3] EchoStar is a multi-channel video provider throughout the United States via a Direct Broadcast Satellite ("DBS") system consisting of high-powered satellites with scrambled signals to consumers who have paid a subscription fee. EchoStar operates its DBS system under the trade name "Dish Network". Dish is licensed to broadcast its services in the United States.
[4] The Plaintiff NagraStar LLC ("NagraStar") is a supplier of proprietary technology including a "conditional access system" known as Digital Nagra Advanced Security Process ("DNASP"), used by EchoStar under licence to scramble its satellite signals.
[5] Bell ExpressVu Limited Partnership ("ExpressVu") is the Plaintiff in a companion action (#09-8094-00CL) and brings a like motion in that action with similar allegations as seen in the Motion at hand.
[6] The Plaintiffs allege in the action that Ravin is engaging in so-called satellite piracy, acting through various web sites, and directly and indirectly, facilitating the unauthorized reception of Dish programming (and ExpressVu programming) by, inter alia, selling certain receivers (so-called "nFusion FTA Receivers") and arranging for the release of piracy files and the sale of supportive equipment and devices to enable the receivers to steal Dish programming (and ExpressVu programming) for the benefit of unauthorized persons who were not paying customers of EchoStar (or ExpressVu).
[7] Without a subscription, EchoStar does not authorize access to its scrambled programming. Moreover, as EchoStar is not licensed at present by the Government of Canada to permit the descrambling of its scrambled programming signals in Canada, no one has the lawful right to descramble EchoStar's signal in Canada.
[8] On March 26, 2009, Lederman J. granted an Order for Anton Piller and injunctive relief (the "first Anton Piller Order").
The Motion at hand for a second Anton Piller Order
[9] The Plaintiffs seek an Order compelling Ravin to permit them to forensically copy the drives and files of certain computers in his possession or within his control (the "Computers") which they believe contain relevant evidence that Ravin is likely to conceal, delete or destroy if the Order is not granted.
[10] They submit the relief is necessary to preserve evidence of Ravin's breaches of the Radiocommunication Act and contempt of the first Anton Piller Order and to ensure that the process of this Court is not frustrated prior to the trial of this action.
[11] The Plaintiffs have brought a contempt motion in which they allege, inter alia, that Ravin continues to engage in breaches of the Radiocommunication Act R.S.C. 1985, c.R-2, as am. by making posts on the web site www.dummychat.com ("Dummy Chat Web Site") under the username "Superstar". Superstar's posts provide updates regarding the encrypted programming of the Plaintiffs, provide support for decrypting the Plaintiffs' programming, and post so-called piracy files.
[12] The Plaintiffs attempted to execute the first Anton Piller Order March 30, 2009. They encountered difficulty at the residence of Ravin, being 2901 Jane Street, Unit 91, Toronto and at the Digital Store at Futurity Gate, Unit 7, Vaughan, Ontario. The evidence indicates that as of March 26, 2009, the Digital Store Web Site was owned, operated and/or promoted by Ravin.
[13] Ravin reportedly was at home March 30, 2009 but would not come to the door despite persistent knocking and he could not be served other than by email at 11:26 a.m. On March 31, 2009 about 7:30 a.m. the Order was personally served on Ravin and explained to him by the Independent Supervising Solicitor. Ravin was asked to provide his Acer Laptop computer but he did not deliver it until April 1, 2009.
[14] Thousands of files were deleted from this computer between March 30 and April 1, 2009.The Acer Laptop was imaged about April 2, 2009 pursuant to the first Anton Piller Order and found to contain five fragments of deleted files indicating access to the Dummy Chat Web Site by Superstar on at least five occasions. The fragments indicated that a user named "Superstar" accessed private messages on the Dummy Chat Web Site and that approximately 600 private messages were available.
[15] The affidavit of Wayne Doney sworn September 14, 2009 at para. 15 sets forth the nature of the very extensive deletions from the Acer Laptop after the Plaintiffs' solicitors knocked unsuccessfully on Ravin's door with the first Anton Piller Order on March 30, 2009 until the computer was physically obtained pursuant to the Order of April 1, 2009. The actions taken on the computer over that brief time period provide strong evidence that Ravin is engaged in satellite piracy and the improper decryption of Dish Network programming and ExpressVu programming.
[16] The Dummy Chat Web Site is a piracy forum web site, containing threads related to nFusion-brand FTA receivers and numerous posts made by a user named "Digital" and a user named "Superstar". Evidence suggests that after Ravin became aware of the court action and that Digital's posts could be used against the defendants he deleted Digital's user account and many posts. Only an administrator or moderator of a website is able to delete threads or posts from a forum web site. Superstar is an administrator and moderator on the Dummy Chat Web Site and thus had the ability to delete Digital's user profile and threads.
[17] Between April 1, 2009 (after Ravin was served with the first Anton Piller Order) and December 7, 2009, Superstar has made more than 1800 posts, including messages providing updates about nFusion FTA Receivers and the Plaintiffs' encrypted programming, technical support for using nFusion FTA Receivers to decode and view the encrypted programming of the Plaintiffs, piracy files and references to nFusion FTA Receivers and security concern.
[18] There is also evidence that other computers have been used to access user profiles for Superstar and the users Commickaze and Dummycha on the Dummy Chat Web Site, as set out in paras. 9 to 15 of the Dan Caban affidavit sworn December 9, 2009. These users all have administrative or moderator access to the Dummy Chat Web Site. Additionally, Ravin has been seen with an HP Laptop computer during November, 2009. The data on all of the Computers that are the subject of the Motion may contain evidence relevant to the action and pending motions for contempt and to vary the first Anton Piller Order.
The Law and its application to the Evidence
[19] An Anton Piller order is a pre-trial remedy by which a plaintiff is granted access, without notice, to a defendant's premises to inspect and secure evidence where there is a real concern that this evidence would be removed, destroyed or concealed by the defendant if the defendant were to be given advance notice of the action.
[20] The jurisdiction to grant Anton Piller relief is found in this Court's inherent jurisdiction to ensure that its process is not frustrated or defeated by the destruction or alienation of evidence. There is a strong public interest in ensuring that the court process in civil cases is not frustrated by the suppression of evidence. See generally Ontario Realty Corp. v. P. Gabriele & Sons Ltd. 2000 CanLII 22697 (ON S.C.), (2000), 50 O.R. (3d) 539 at 546-48 (S.C.J.).
[21] The test for granting an Anton Piller Order requires a moving party to establish:
• a strong prima facie case;
• serious damage, actual or potential, to the plaintiff;
• convincing evidence that the defendant has in its possession incriminating documents or things, and
• that there is a real possibility that the defendant may destroy such material before any court discovery proceedings can be taken.
See Anton Piller v. Manufacturing Process Ltd., [1976] 1 All E.R. 779 at 784 (C.A.); Celanese Canada Inc. v. Murray Demolition Corp., [2006] S.C.C. 36 at para. 35.
[22] This Court is required to consider whether a second Anton Piller Order should be granted against Ravin, for the limited purpose of searching for and imaging the Computers he uses.
[23] Lederman J., in granting the first Anton Piller Order was satisfied that all the requisite criteria were met. He held that the Plaintiffs had made out a strong prima facie case that the Defendants have been engaging in activities that contravene the Radiocommunication Act in assisting their customers to pirate the Plaintiffs' and Bell ExpressVu's programming through selling nFusion FTA Receivers and distributing pirate technology and services in support thereof. Evidence obtained via the first Anton Piller Order or since it was obtained strongly indicates that Ravin continues to breach the Radiocommunication Act through his posting as Superstar on the Dummy Chat Web Site. Although Ravin denies that he is Superstar, there are fragments of deleted files to the contrary, as they show that the Superstar user profile has been accessed from Ravin's personal use Acer Laptop and an IBM Server.
[24] Superstar's postings to the Dummy Chat Web Site advise how to use a nFusion FTA Receiver to decode the Plaintiffs' encrypted programming, broadcast updates regularly and provide piracy files.
[25] The Plaintiffs will suffer serious damage should the vital evidence sought through a second Anton Piller Order not be available as the Plaintiffs may be otherwise unable to prove their case and may continue to suffer serious adverse financial impact through lost sales and loss of competitive position. See Aldrich et al v. Struk et al. (1984), 8 C.R. (3d) 369 (B.C.S.C.) at 371.
[26] The evidence establishes a prima facie case that the Acer Laptop and the IBM Server have been used to login to Superstar's user profile on the Dummy Chat Web Site. The evidence indicates the IBM Desktop has been used to login to the user profiles of Commickaze and Dummycha on the Dummy Chat Web Site. Superstar, Commickaze and Dummycha all have administrator or moderator level access to the Dummy Chat Web Site. The data on the sought computers may contain information relating to satellite piracy.
[27] It is a reasonable prima facie inference from the evidence to date that Ravin is engaged in satellite piracy. The evidence indicates he searched for encryption software and deleted thousands of files on the Acer Laptop as the Plaintiffs were attempting to execute the first Anton Piller Order. It is therefore a reasonable inference that new evidence now existing on his computers will be destroyed or concealed given what happened previously between the time of Ravin having notice of the first Anton Piller Order and giving up his Acer Laptop for forensic analysis pursuant to that first Anton Piller Order. See Dunlop Holdings Ltd.& Another v. Staravia, (1981) D No.1988 at 3 (C.A.), online: LEXIS; DIRECTTV, Inc. v. Toth et al, unreported, March 26, 2002, Court File No. 02-CV -226455 CM3 (Ont.S.C.J.) at para. 8. There is very good reason to believe that relevant evidence will be deleted, destroyed or concealed if the administration of justice is left to depend upon the ordinary discovery process.
[28] To have a better chance of being effective in the case at hand, the second Anton Piller Order must require the delivery up of any and all of the evidence, wherever situate, and in particular, require Ravin to disclose the whereabouts of the Computers he uses and facilitate access to them.
[29] There is minimal intrusion upon the privacy of, and inconvenience to, Ravin through compliance with the requested second Anton Piller Order. The Court file in this action is sealed for 10 days from the date of the Order. The electronic data contained in the computers to be forensically examined will be reproduced and removed into the custody of the Independent Supervising Solicitor, an officer of the Court. Any assertion of solicitor-client privilege in respect of evidence is protected and such disputed evidence is not made available to the Plaintiffs except as ordered by the Court.
[30] Echostar has provided the requisite undertaking as to damages. The balance of convenience favours the granting of injunctive relief to the Plaintiffs.
[31] In my view, and I so find, the Plaintiffs have established a strong prima facie case against the Defendants and Ravin, the likelihood of serious damage, actual or potential, to the Plaintiffs, and very convincing evidence that Ravin has in his possession incriminating documents or electronic data and that there is a real risk that he may destroy such documents and data before any discovery proceedings can be taken and if notice is provided to him in advance of obtaining and serving the second Anton Piller Order.
Disposition
[32] For the reasons given, the Plaintiffs' motion is granted and the second Anton Piller Order has been signed and is to be issued.
The Court further ORDERS judgment in favor of Plaintiffs D*SH Network L.L.C., E*hoStar Technologies L.L.C. and N*graStar LLC on each of Plaintiffs' claims under 17 U.S.C. 1201, 47 U.S.C. 605, and 18 U.S.C. 2511, and for breach of contract (Counts 1-5 in Plaintiffs' Complaint) in the aggregate amount of Twenty Million Dollars ($ 20,000,000.00) as to Defendant.
If all these bustes are going on why does it not make the news dish and bev are big companys i would think them going after indaviduals would be more news worthy jmo
D*SH Network Vs. Munid and Ootra Ramkissoon (NJ District Court) Update 02/11/2010 Scheduling Order It is on this 11th day of February, 2010; ORDERED THAT: 1 A scheduling conference be conducted before the undersigned at 11:30 A.M. on April 6, 2010, in Courtroom 2C, Martin Luther King, Jr., Federal Building and Court House, 50 Walnut Street, Newark, New Jersey. See Local Civil Rule 16.1(a)1. 2 The early disclosure requirements of Fed. R. Civ. P. 26 will be enforced. Therefore, the parties shall immediately exchange the information described in Fed. R. Civ. P. 26(a)1(A) -(D) without awaiting a discovery request.
Refer to the attachment.
D*SH NETWORK L.L.C. et al v. RAMKISSOON et al
Plaintiffs: D*SH NETWORK L.L.C., E*HOSTAR TECHNOLOGIES L.L.C. and N*GRASTAR LLC Defendants: MUNID RAMKISSOON, OOTRA RAMKISSOON and DOES 1-10
Case Number: 2:2009cv06135 Filed: December 4, 2009
Court: New Jersey District Court Office: Newark Office County: Morris Presiding Judge: Judge Dickinson R. Debevoise Referring Judge: Magistrate Judge Michael A. Shipp
Nature of Suit: Other Statutes - Cable/Satellite TV Cause: 28:1331 Federal Question-Injunctive & Declaratory Relief Jurisdiction: Federal Question Jury Demanded By: None